Stow, C. J.
This is a most extraordinary proceeding, and one which, in my opinion, we ought never to have entertained. The question, in the shape in which it has been presented, is not properly before us, and even if it were, it does not appear to me to be a case of which this court has original jiwisdiction. The legislature having, however, in its wisdom, sent the matter to us, and we (whether as judges, commissioners, or arbitrators, it would be difficult to determine) having consented to entertain it, the parties interested are entitled to a decision, or, at least, to an expression of opinion from us.
The question is — where is the county seat of La Eayette county ?
For the proper understanding of this question, it is necessary to examine at length the various statutes, as well as the constitutional provision on the subject.
The act of 1846, p. 41, dividing Iowa county, and establishing La Fayette, provides, section 3, for the purchase by the county commissioners of a quarter section of land in town 2, range 3, for the use of the county, and further provides, that the place thus purchased shall be the county seat. vThe commissioners made the purchase.
The act of 1847, p. 57, organizing the county, provides, section 7, “ that until suitable buildings are provided at the county seat, the courts and public offices shall be held at such place as the commissioners shall select,” and it seems that Shullsburg was selected for that purpose.
The act of 1848, p. 186, authorizing the people to-vote for locating the county seat, provides, section 1, for the electors, on the second Monday of May following, determining by an absolute majority, the site of the county seat, and gives them unlimited authority in selecting the place. The same section further provides, that if no place should receive a majority of all the votes, at the voting in May, the electors might continue to vote on the question at every subsequent [528]*528annual election, until a county seat should be selected and located. The next section provides, that until a county seat should be selected, as provided for by the first section, “ the county seat shall be and remain at Shullsburg.” Under this act no effectual voting has been had.
Such were the laws and state of things when the constitution went into operation, and which provides, article 13, section 8, that “ no county seat shall be removed until the point to which it is proposed to be removed shall be fixed by law, and a majority of the voters of the county, voting on the question, shall have voted in favor of its removal to such point.”
Then comes the act of March 11, 1849, p. 139, which authorizes, section 1, the electors to vote at the general election in November following, “ on the question of the removal of the comity seat,” and which provides, section 3, that “if a majority of the votes shall be for removal to Shullsburg, then Shullsburg shall be the permanent county seat; but should there not be a majority for such removal, then the county seat shall continue to be permanently located at the Centre.” A vote was had under this act, the result of which has been the subject of controversy, and was the cause of the extraordinary law of last winter, providing for this novel proceeding.
The relator, the champion of Shullsburg, claims that the vote was in favor of that place, while the other side contends that it settled the question in favor of the Centre.
In the view we take of the constitutional provision, and of the antecedent legislation on the subject, it is not necessary for us to exercise the powers of a board of county canvassers, which the legislature has attempted to confer upon us, nor to decide whether in fact Shullsburg had a majority of the legal votes.
Though the centre had been previously made the county seat, the act of 1848 provides, in express terms, that Shulls-[529]*529burg, until another place should be selected, and suitable public buildings provided at it, should be and remain the county seat; thus in effect, and by necessary implication, though not in words, removing the seat from the Centre. No other j>lace had been selected when the constitution went into operation, and which found Shullsburg, for the time being at least, defacto and de jure, the county seat. And so, in our view of the constitution, in was to remain until the contingency contemplated by the act of 1848 occurred, or until another point had been fixed by the legislature, and approved of by the popular vote.
I cannot admit the proposition, that the county seat having been fixed at Shullsburg but temporarily, and being subject to be removed from there at any time by a popular vote, it is not within the purview of the constitution. The constitution makes no distinction between temporary and permanent county seats. In fact, up to its adoption, no county seat could be considered as permanent, the legislature having always, until then, had the power of changing a county seat at pleasure, and haring often exercised that power most capriciously and vexatiously, and it was to guard against the mischief and inconvenience, and perhaps the legislative immorality of arbitrary removal, that the constitution wisely provided that no county seat should be removed until another point for it should be fixed by law, and approved by the people of the county. Shullsburg held, it is true, by a land of defeasible title, and at the will of the county; but, nevertheless, its right was complete for the time being, and, for all we know, might never have been disturbed. The constitution found it in the possession of this right, and guaranteed to it its continued enjoyment, until deprived of it by virtue of the act under which it held, or by the process provided by the constitution itself.
The county seat then being at Shullsburg, on the adoption of the constitution, and not having been removed from there [530]*530by any legal or constitutional process, it is idle to inquire whether, under the law of 1849, there was a majority of votes for removing it to that place. The law assumes the false hypothesis that the county seat was somewhere else, and no valid action could be had under it.
' It is said, however, that the act of 1849 recognizes the Centre as the comity seat, and is declaratory to that effect. I answer, with deference, that the legislative recognition proves nothing, and that the legislature had no power to pass such a declaratory law. The judiciary alone is to determine what the law is. And I much doubt whether, under the American system of written constitutions, the legislature can, in any ordinary case, enact what is properly a declaratory law. We have, in general, got our ideas of such laws from abroad, without attending to the wondrous difference there is between the legislative power in our own country and all others. The parliament of England is said to be supreme, and having the power of passing any law it pleases, even one changing its constitution, not being restrained by any organic and paramount law, it may properly, in a political sense be called so. In Russia and Turkey, the legislative power being one with the judicial and executive, is purely despotic, and may, of course, enact or declare whatever law it sees fit, being liable to be called in question by God alone. But with us the case is far different.
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Stow, C. J.
This is a most extraordinary proceeding, and one which, in my opinion, we ought never to have entertained. The question, in the shape in which it has been presented, is not properly before us, and even if it were, it does not appear to me to be a case of which this court has original jiwisdiction. The legislature having, however, in its wisdom, sent the matter to us, and we (whether as judges, commissioners, or arbitrators, it would be difficult to determine) having consented to entertain it, the parties interested are entitled to a decision, or, at least, to an expression of opinion from us.
The question is — where is the county seat of La Eayette county ?
For the proper understanding of this question, it is necessary to examine at length the various statutes, as well as the constitutional provision on the subject.
The act of 1846, p. 41, dividing Iowa county, and establishing La Fayette, provides, section 3, for the purchase by the county commissioners of a quarter section of land in town 2, range 3, for the use of the county, and further provides, that the place thus purchased shall be the county seat. vThe commissioners made the purchase.
The act of 1847, p. 57, organizing the county, provides, section 7, “ that until suitable buildings are provided at the county seat, the courts and public offices shall be held at such place as the commissioners shall select,” and it seems that Shullsburg was selected for that purpose.
The act of 1848, p. 186, authorizing the people to-vote for locating the county seat, provides, section 1, for the electors, on the second Monday of May following, determining by an absolute majority, the site of the county seat, and gives them unlimited authority in selecting the place. The same section further provides, that if no place should receive a majority of all the votes, at the voting in May, the electors might continue to vote on the question at every subsequent [528]*528annual election, until a county seat should be selected and located. The next section provides, that until a county seat should be selected, as provided for by the first section, “ the county seat shall be and remain at Shullsburg.” Under this act no effectual voting has been had.
Such were the laws and state of things when the constitution went into operation, and which provides, article 13, section 8, that “ no county seat shall be removed until the point to which it is proposed to be removed shall be fixed by law, and a majority of the voters of the county, voting on the question, shall have voted in favor of its removal to such point.”
Then comes the act of March 11, 1849, p. 139, which authorizes, section 1, the electors to vote at the general election in November following, “ on the question of the removal of the comity seat,” and which provides, section 3, that “if a majority of the votes shall be for removal to Shullsburg, then Shullsburg shall be the permanent county seat; but should there not be a majority for such removal, then the county seat shall continue to be permanently located at the Centre.” A vote was had under this act, the result of which has been the subject of controversy, and was the cause of the extraordinary law of last winter, providing for this novel proceeding.
The relator, the champion of Shullsburg, claims that the vote was in favor of that place, while the other side contends that it settled the question in favor of the Centre.
In the view we take of the constitutional provision, and of the antecedent legislation on the subject, it is not necessary for us to exercise the powers of a board of county canvassers, which the legislature has attempted to confer upon us, nor to decide whether in fact Shullsburg had a majority of the legal votes.
Though the centre had been previously made the county seat, the act of 1848 provides, in express terms, that Shulls-[529]*529burg, until another place should be selected, and suitable public buildings provided at it, should be and remain the county seat; thus in effect, and by necessary implication, though not in words, removing the seat from the Centre. No other j>lace had been selected when the constitution went into operation, and which found Shullsburg, for the time being at least, defacto and de jure, the county seat. And so, in our view of the constitution, in was to remain until the contingency contemplated by the act of 1848 occurred, or until another point had been fixed by the legislature, and approved of by the popular vote.
I cannot admit the proposition, that the county seat having been fixed at Shullsburg but temporarily, and being subject to be removed from there at any time by a popular vote, it is not within the purview of the constitution. The constitution makes no distinction between temporary and permanent county seats. In fact, up to its adoption, no county seat could be considered as permanent, the legislature having always, until then, had the power of changing a county seat at pleasure, and haring often exercised that power most capriciously and vexatiously, and it was to guard against the mischief and inconvenience, and perhaps the legislative immorality of arbitrary removal, that the constitution wisely provided that no county seat should be removed until another point for it should be fixed by law, and approved by the people of the county. Shullsburg held, it is true, by a land of defeasible title, and at the will of the county; but, nevertheless, its right was complete for the time being, and, for all we know, might never have been disturbed. The constitution found it in the possession of this right, and guaranteed to it its continued enjoyment, until deprived of it by virtue of the act under which it held, or by the process provided by the constitution itself.
The county seat then being at Shullsburg, on the adoption of the constitution, and not having been removed from there [530]*530by any legal or constitutional process, it is idle to inquire whether, under the law of 1849, there was a majority of votes for removing it to that place. The law assumes the false hypothesis that the county seat was somewhere else, and no valid action could be had under it.
' It is said, however, that the act of 1849 recognizes the Centre as the comity seat, and is declaratory to that effect. I answer, with deference, that the legislative recognition proves nothing, and that the legislature had no power to pass such a declaratory law. The judiciary alone is to determine what the law is. And I much doubt whether, under the American system of written constitutions, the legislature can, in any ordinary case, enact what is properly a declaratory law. We have, in general, got our ideas of such laws from abroad, without attending to the wondrous difference there is between the legislative power in our own country and all others. The parliament of England is said to be supreme, and having the power of passing any law it pleases, even one changing its constitution, not being restrained by any organic and paramount law, it may properly, in a political sense be called so. In Russia and Turkey, the legislative power being one with the judicial and executive, is purely despotic, and may, of course, enact or declare whatever law it sees fit, being liable to be called in question by God alone. But with us the case is far different. The national congress, within the grant of powers to the general government, and the state legislatures, where not restrained by the federal or their own constitutions, may pass whatever laws they think proper, but it is still, as I have already remarked, the judiciary only which can settle what the law is, or has been. And when the ■ legislature, national or state, undertakes to declare — in other words, to construe — the existing law, it (as a general thing) goes beyond its constitutional sphere, and usurps powers which do not belong to it. I say, as a general thing, because I admit that there are matters of legislative cognizance which are not the [531]*531subjects of judicial review, such as declaring war — declaring war already to exist by the act of another nation: and others of a like character. In these cases, the legislature, in a political sense, is supreme, and is not to be controlled by the judicial or any other human power — as in Russia and Turkey, it acts independent of every thing except the supreme judge and governor.
The conclusion of the court is, that the county seat of La Fayette county is now at Shullsburg, and that it has been there since the act of March 11, 1848, and that it is to remain there until removed as provided by that act, or until removed under the constitutional provision on the subject, and we direct the following minute to be entered of record:
In the matter of the county seat of "V La Payette county, f
ex Tel. C
Jambs H. Knowlton. j
This matter having been argued by counsel, as well on the part of the relator as on the part of other persons interested, and due deliberation being had thereon, it is ordered, adjudged and decreed, and this court, by virtue of the statute in this case made and provided, does order, adjudge and decree that the county seat of the said county now is, and has been, since the act of the territorial legislature of March 11, 1848, at Shullsburg, in the said county; and that it there remain, until another site is selected, and suitable buildings provided thereon, as provided by the said act of March 11, 1848, or until removed according to the provisions of the constitution.